Plaintiffs
Wharf, Inc., (“The Wharf”), BRW, Inc.
(“Captain White”), and Salt Water Seafood, Inc.
(“Salt Water”) (collectively, the
“Plaintiffs”) filed their initial suit on July
23, 2015, against the District of Columbia (“the
District”), Hoffman-Madison Waterfront, LLC
(“HMW”) and Wharf Horizontal Reit Leaseholder,
LLC (“WHRL”) (HMW and WHRL are collectively
referred to as the “Initial Developer
Defendants”). See generally Compl., ECF No. 1.
Plaintiffs alleged that the Initial Developer Defendants
violated the terms of the parties' lease agreements, and
that the District violated the Takings Clause of the Fifth
Amendment by impeding access to the property leased to
Plaintiffs at the Southwest Waterfront of the District of
Columbia. Id.

The
Initial Developer Defendants moved to dismiss the Complaint
and Plaintiffs thereafter filed their First Amended
Complaint, which all the defendants moved to dismiss.
See Initial Developer Defs.' Mot. to Dismiss,
ECF No. 20; District's Mot. to Dismiss, ECF No. 25. This
Court denied both motions to dismiss, and the Initial
Developer Defendants filed their Answer to the
Plaintiffs' First Amended Complaint, in which Defendant
WHRL also filed a counterclaim alleging that Plaintiffs
breached their lease agreement and were unjustly enriched as
a result of WHRL's improvement of the premises.
See Memorandum Opinion, ECF No. 45 and Order, ECF
No. 44; Initial Developer Defs.' Answer and Countercl.,
ECF No. 54. WHRL filed a subsequent [74] unopposed motion for
joinder to add Wharf Fish Market REIT Leaseholder LLC
(“WFMRL”) as an additional party, which was
granted by the Court, with the effect that WFMRL was added as
a Defendant and counterclaim Plaintiff.[1]See
Order, ECF No. 75.

Plaintiffs
moved for leave to file a Second Amended Complaint, which was
consented to by the District, unopposed by the other three
Defendants, and granted by the Court. See Pls.'
Mot. for Leave to File Second Am. Compl., ECF No. 80; see
also April 26, 2017 Minute Order. Plaintiffs' [82]
Second Amended Complaint added the following Defendants:
Wharf District GP Joint Venture LLC (“WDGJV”);
Wharf Horizontal REIT, LLC (“WHR”);
Hoffman-Struever Waterfront, LLC (“HSW”); and the
Wharf District Joint Venture, L.P. (“WDJV”)
(collectively, the “New Developer Defendants”).
Subsequently, the New Developer Defendants filed a [92]
Motion to Dismiss the claims asserted against them in the
Second Amended Complaint. This Court held in abeyance the New
Developer Defendants' Motion to Dismiss and allowed the
Plaintiffs to file a Third Amended Complaint. See
Memorandum Opinion, ECF No. 103 and Order, ECF No. 102.

After
Plaintiffs filed the sealed version of their [109] Third
Amended Complaint, the New Developer Defendants filed the
instant [114] Motion to Dismiss the Claims Asserted [against
them] in the Third Amended Complaint, arguing that Plaintiffs
have not asserted facts sufficient to establish a plausible
relationship between the Initial Developer Defendants and the
New Developer Defendants as alter egos or co-conspirators.
Upon consideration of the pleadings, [2] the relevant legal
authorities, and the record as a whole, the Court DENIES the
New Developer Defendants' Motion to Dismiss and lets
stand the Plaintiffs' Third Amended Complaint for the
reasons described herein.

I.
BACKGROUND

This
case concerns the Municipal Fish Market located at 1100 Maine
Avenue, S.W., Washington, D.C. (“Municipal Fish
Market” or “the Market”). Third Am. Compl.
¶ 1. Plaintiffs run three seafood businesses in the
Municipal Fish Market and bring this action as lessees of
property located within the Market. Id. ¶ 2. As
previously noted, Plaintiffs initially named as defendants
the District, which was the original leaseholder for the
properties, and HMW and WHRL, with WFMRL subsequently added
as a defendant by WHRL (these three defendants are
collectively referred to as “Initial Developer
Defendants”). Plaintiffs' Second Amended Complaint
also added WDGJV, WHR, HSW, and WDJV (collectively, the
“New Developer Defendants”) as additional
defendants. See Second Am. Compl. ¶¶ 1,
23-29, 58 (noting that all the Developer Defendants are
“affiliated” entities and further, that
“the District assigned Plaintiffs' leases to [the]
Developer Defendants, acting through WHRL[, ] [which in turn]
assigned the leases to WFMRL.”) The commercial leases
at issue are: the agreement entered into by The Wharf and the
District dated July 12, 2000; the agreement entered into by
Captain White and the District dated July 12, 2000; and the
agreement originally entered into by Pruitt's Seafood,
Inc. and the District, and subsequently assumed by Salt Water
(then doing business as W.D., Inc.) from DNM Seafood, Inc. on
March 14, 2001, with the consent of then-lessor, the
District. Third Am. Compl. ¶¶ 47, 49, 51-52.

In
their Third Amended Complaint, Plaintiffs include three
claims against the District, including two Fifth Amendment
Takings Clause claims (Counts I and II) and a violation of
procedural due process claim (Count III). Plaintiffs also
raise the following eight claims against all of the Developer
Defendants: declaratory judgment (Count IV); specific
performance and injunctive relief based on breach of lease
(Count V); breach of lease (Count VI); breach of covenant of
good faith and fair dealing (Count VII), trespass and
conversion (Count VIII); nuisance (Count IX); tortious
interference with prospective business advantage (Count X);
and unjust enrichment (Count XI).

II.
LEGAL STANDARD

Pursuant
to Federal Rule of Civil Procedure 12(b)(6), a party may move
to dismiss a complaint on the grounds it “fail[s] to
state a claim upon which relief can be granted.”
Fed.R.Civ.P. 12(b)(6). A motion to dismiss under Rule
12(b)(6) is “intended to test the sufficiency of the
complaint.” DSMC, Inc. v. Convera Corp., 273
F.Supp.2d 14, 23 (D.D.C. 2002). To survive a Rule 12(b)(6)
motion, a complaint must contain sufficient factual
allegations that, if accepted as true, “state a claim
to relief that is plausible on its face.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (citation omitted). “[A] complaint
[does not] suffice if it tenders ‘naked
assertion[s]' devoid of ‘further factual
enhancement.'” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Twombly, 550 U.S. at 557).

In
evaluating a Rule 12(b)(6) motion to dismiss for failure to
state a claim, a court must construe the complaint in the
light most favorable to the plaintiff and must accept as true
all reasonable factual inferences drawn from well-pleaded
factual allegations. In re United Mine Workers of Am.
Employee Benefit Plans Litig., 854 F.Supp. 914, 915
(D.D.C. 1994) (citation omitted). In deciding a Rule 12(b)(6)
motion, a court may consider “the facts alleged in the
complaint, documents attached as exhibits or incorporated by
reference in the complaint, ” or “documents upon
which the plaintiff's complaint necessarily relies even
if the document is produced not by the plaintiff in the
complaint but by the defendant in a motion to dismiss.”
Ward v. District of Columbia Dep't of Youth Rehab.
Servs., 768 F.Supp.2d 117, 119 (D.D.C. 2011) (internal
quotation marks omitted). The court may also consider
documents in the public record of which the court may take
judicial notice. Abhe & Svoboda, Inc. v. Chao,
508 F.3d 1052, 1059 (D.C. Cir. 2007).

III.
DISCUSSION

Before
discussing the allegations against the New Developer
Defendants that are contained in Plaintiffs' Third
Amended Complaint, it is perhaps useful to examine the
triggering event that led the Plaintiffs to add these parties
as defendants. Plaintiffs assert that “shortly after
the parties commenced discovery in March 2017, Plaintiffs
learned of the existence of additional, affiliated entities
associated with the Wharf Project development.”
Pls.' Opp'n. at 2. This occurred after the Initial
Developer Defendants produced to Plaintiffs an organizational
chart, which not only showed that the New Developer
Defendants owned and controlled or were owned and controlled
by the Initial Developer Defendants but also that all
defendants were “part of a complex, interwoven
corporate network - all working towards the development,
financing, and construction of the Wharf Project.”
Pls.' Opp'n. at 2-3; see Fish Market
Organizational Chart, ECF No.119-1, Ex. A. The Fish Market
Organizational Chart begins with Initial Developer Defendant
HMW, a joint venture and the developer selected for the
redevelopment project at issue in this case, and it ends with
the other Initial Developer Defendants - WHRL, a limited
liability company and former landlord of the Plaintiffs, and
WFMRL, a limited liability company and current landlord of
the Plaintiffs. Following the Chart from start to finish
necessitates movement through three levels of other
organizations, all of whom are affiliated with the Initial
Developer Defendants and involved in some way with the
redevelopment project, and who have been named as New
Developer Defendants.[3]

The New
Developer Defendants concede that Plaintiffs' Third
Amended Complaint adds new factual allegations relevant to
them, but they argue that while such allegations may
demonstrate overlapping ownership with the Initial Developer
Defendants, which encompasses some common officers,
directors, office space and management, this is not enough to
support alter ego or conspiracy claims. Nor do Plaintiffs
allege that such entities were “formed to perpetrate a
fraud on them” or is there “any reason to believe
that the Original Developer Defendants would be unable to
satisfy any judgment” the Plaintiffs may obtain. New
Developer Defs.' Mem. at 3. These New Developer
Defendants assert therefore that the claims against them
should be dismissed because they are “premised solely
upon Plaintiffs' allegations ...

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